Raymond Garvin v. DAVID ARMSTRONG, DR. JOHN H. OBERHELMAN, and FLORA PINNELL

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1263
RAYMOND GARVIN,
Plaintiff-Appellant,
v.
DAVID ARMSTRONG, DR. JOHN H. OBERHELMAN,
and FLORA PINNELL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CV 4233--James T. Moody, Judge.
Argued November 28, 2000--Decided January 12, 2001
Before FAIRCHILD, DIANE P. WOOD, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. In this action, brought
under 42 U.S.C. sec. 1983, Raymond Garvin, a
former inmate of the DuPage County (Illinois)
jail, alleges that Dr. John Oberhelman, the
medical director at the jail, was deliberately
indifferent to his serious medical need for an
asthma inhaler. The district court granted
summary judgment for Dr. Oberhelman./1
Garvin has taken asthma medication for many
years. When he entered the jail on March 20,
1997, however, his inhaler was taken away from
him as a result of jail policy. He remained at
the jail until July 17, 1997.
Dr. Oberhelman has been medical director at the
jail for 27 years and during that time has
treated many patients with asthma. Although he
acknowledges that inmates of Illinois prisons are
allowed to keep inhalers on their persons, he
contends that his policy for the DuPage County
jail is required by the Illinois County Jail
Standards. Those standards say that all drugs,
including over-the-counter medication, must be
secured and accessible only to designated staff.
Medications also are to be administered only in
the presence of a medical staff member or jail
officer. Dr. Oberhelman defends his policy as a
security measure, claiming that inhalers are

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metal and can be fashioned into weapons. In
addition, the substance in inhalers can induce a
high if the device is misused. On the other side
of the ledger, it is also the policy or custom at
the jail that inhalers be provided to inmates
within 4 minutes of their requesting them.
During the first 5 days Garvin was in the jail,
he received all of the medication Dr. Oberhelman
ordered. In fact, he received medication on 29
occasions. On March 25, 5 days after he arrived
at the jail, while Dr. Oberhelman was examining
him, Garvin complained that he was not getting
his medication soon enough after it was
requested. And, in fact, no one denies that the
sooner an asthma patient receives treatment--
e.g., an inhaler-- when an attack is coming, the
better. In response to Garvin’s complaint about
delay, Dr. Oberhelman transferred him from the
general population to the infirmary, where he was
housed 15 to 20 feet from where his inhaler was
stored and 5 to 10 feet from a guard.
Nevertheless, Garvin contends that on one
occasion it took 45 minutes to receive his
inhaler.
During Garvin’s 119 days at the jail, he
received medication on 899 occasions. The nursing
staff gave him his inhaler 329 times. During this
time, Garvin never required hospitalization or
emergency treatment due to his asthma. And during
the 27 years that Dr. Oberhelman has been medical
director, no inmate has ever before filed a
complaint about the jail’s inhaler policy.
In the district court, Garvin’s complaint was
dispatched on summary judgment. Accordingly, we
review the judgment de novo. Washington v.
Summerville, 127 F.3d 552 (7th Cir. 1997).
Summary judgment may be granted only when there
are no genuine issues of material fact and the
movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56. We construe the facts
and inferences in the light favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986).
Garvin asserts that he was a pretrial detainee
at the DuPage County jail and that his claim
arises under the Fourteenth Amendment. But he was
actually at the jail while serving a state prison
sentence, having been transferred there only to
await proceedings on a new charge. So his claim
must be judged under the Eighth Amendment, but
this is of no great moment for there is little
practical difference between the standards
utilized under the two amendments. Weiss v.
Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000). A
plaintiff must show two things: that he had a
serious medical need and that a defendant was

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deliberately indifferent to it. Estelle v.
Gamble, 429 U.S. 97 (1976). A difference of
opinion as to how a condition should be treated
does not give rise to a constitutional violation.
Estate of Cole by Pardue v. Fromm, 94 F.3d 254
(7th Cir. 1996). Nor does negligence constitute
deliberate indifference. Farmer v. Brennan, 511
U.S. 825 (1994).
Asthma, depending upon its degree, can be a
serious medical condition. For purposes of this
appeal, we will assume that Garvin’s condition
was sufficiently serious. His claim, however,
fails on the second prong of the Gamble test.
First, Garvin does not allege that Dr.
Oberhelman personally failed to take actions
which would constitute deliberate indifference.
The only actions which could arguably meet that
standard are those of the persons who
occasionally took what might be considered an
excessively long time to provide him with his
inhaler. But Garvin does not allege that Dr.
Oberhelman personally was responsible for the
delay. Individual nurses are charged with
carrying out Dr. Oberhelman’s orders and they are
the ones responsible for any delay in Garvin
receiving his inhaler. As we repeatedly say, a
supervisor cannot be held vicariously liable for
the actions of others. Lanigan v. Village of East
Hazel Crest, Illinois, 110 F.3d 467 (7th Cir.
1997).
Furthermore, Dr. Oberhelman took steps which
contradict a finding of deliberate indifference.
Soon after Garvin arrived at the jail, he
complained about the delay in receiving his
inhaler. Dr. Oberhelman moved him from the
general population to the medical unit so the
inhaler could be retrieved more quickly when
needed. In the medical unit, Garvin was housed no
more than 20 feet away from where his inhaler was
kept. Dr. Oberhelman also prescribed Theodur, a
tablet which acts as a bronchodilator;
Prednisone, a steroid used for the treatment of
asthma; and antibiotics for the treatment of
asthmatic bronchitis. In addition, an asthma
nebulizer was purchased by the jail especially
for Garvin’s use. To put it mildly, the facts in
this case show that Garvin received considerable
medical care during the time he was at the jail.
Garvin’s claim against Dr. Oberhelman, then,
necessarily is that the jail policy is so
medically unreasonable that it rises to the level
of deliberate indifference. Yet the policy is
supported by the Illinois County Jail Standards.
See Ill. Admin. Rules, Sec. 701, et seq. The
standards provide:

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Security of medical supplies shall be maintained
at all times. Drugs, including over-the-counter
medication, and other abusable medical supplies
shall be secured and accessible only to
designated staff.
Ill. Admin. Rules, Sec. 701.90(f)(1). Even were
it not for the standard, we would find it very
difficult to find that the DuPage County jail
policy was unconstitutional. There was a policy
at the jail that asthmatics receive their
inhalers within 4 minutes of their asking for
them. A nurse observed the use of the inhaler
and, in Garvin’s case, instructed him on how
better to use it. Garvin was allowed to use his
inhaler twice a day, in addition to the times he
requested it based on need. The fact that a
nebulizer was purchased detracts from any
conclusion that Dr. Oberhelman’s attitude was one
of indifference to those he was treating in the
jail and to Garvin in particular. The treatment
Garvin received does not even come close to
meeting the deliberate-indifference standard, and
the judgment of the district court is,
accordingly,
AFFIRMED.
/1 Originally there were four other defendants, two
of whom were never served. The other two were
nurses at the jail. These defendants do not
concern us because Garvin did not appeal the
judgment dismissing his case against them.

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